Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27783
THIRD DIVISION Docket No. MW-26972
89-3-86-3-2
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier, on December 21,
1984, assigned employes headquartered at Walbridge, Ohio and working under the
Coordinated Toledo Terminal Agreement dated May 22, 1984, to perform eleven
(11) hours of work outside the 'coordinated terminal area' at a derailment at
Pemberville, Ohio, instead of calling and assigning furloughed Chesapeake and
Ohio employes (System File C-TC-2180/MG-5057).
(2) As a consequence of the aforesaid violation, furloughed
Chesapeake and Ohio employes F. Thompson, S. Simmons, H. Napper, A. Clark, A.
Morrison, G. Wright, R. Bennette, L. Dannenberger, D. Fisher, J. Lockhart, B.
Timpe and G. Bailey shall each be allowed eight (8) hours of pay at their
respective straight time rates and three (3) hours of pay at their respective
time and one-half rates.
(3) In addition to the compensation referred to in Part (2) hereof,
Messrs. H. Napper, A. Clark, A. Morrison, F. Thompson, S. Simmons, R. Bennette
and L. Dannenberger shall each be allowed sixteen (16) hours of pay at their
respective straight time rates for the Christmas Holidays (December 24 and 25,
1984) because they would have qualified for such holiday pay if they had been
called to work on December 21, 1984."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At the time this dispute arose, Claimants were furloughed employees
holding seniority on the Carrier's Hocking Division. On December 19, 1984, a
derailment occurred on the Carrier's trackage at Mile Post 105 in Pemberville,
Ohio on the Hocking Division blocking two tracks and a center siding. Only
Form 1 Award No. 27783
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Hocking Division employes were assigned to repair the damaged track on December 19 and 20, 1984.
1984. On December 21, 1984, additional forces were required to assist in
repairing the remaining damaged track. Rather than calling Claimants for the
additional help, the Carrier called 12 employees headquartered at Walbridge,
Ohio (alleged by the Organization to be "all the forces headquartered at
Walbridge") who performed 11 hours of work on December 21, 1984. One-half of
the Walbridge employees were Carrier employees and the remainder were Toledo
Terminal Railroad ("TTRR") employees all working under the May 22, 1984
Coordination Agreement signed by the Carrier, the Organization and the TTRR.
The Organization argues that assignment of the December 21, 1984,
work to the Walbridge employees was improper since those employees were not
working under the Schedule Agreement but were governed by the Coordination
Agreement. The Organization seeks compensation for Claimants for the time
worked by the Walbridge employees along with holiday benefits that may have
accrued for certain eligible individuals as a result of Claimants' entitlement
to work on December 21, 1984. Specifically, the Organization argues that
under Section 2 of the Coordination Agreement, a geographic "co-ordinated
terminal area" was established for the performance of maintenance of way
work in the Toledo Terminal area and since the derailment in this matter at
Pemberville, Ohio, was outside of that area designated by the Coordination
Agreement, assignment of the work to employees working under the Coordination
Agreement was improper. The Carrier argues that Section 2 of the Coordination
Agreement does not place restrictions or limitations on the work area; under
Section 8(a) of the Coordination Agreement TTRR employees were given seniority at the bottom of the
employees could be used outside of the Toledo Terminal; and that an emergency
existed and therefore the Carrier had greater latitude in the assignment of
employees. The Organization responds that although it is correct that former
TTRR employees who were headquartered at Walbridge in the coordinated terminal
area were placed at the bottom of the Hocking Division seniority roster by the
Coordination Agreement, none of those employees had chosen to exercise their
seniority on the Hocking Division Roster but instead chose to exercise their
seniority to obtain positions in the co-ordinated terminal area under the
Coordination Agreement and therefore, the Walbridge employees were not working
under the Carrier's Schedule Agreement. With respect to the Carrier's assertion that an emergency ex
not sustained its burden of demonstrating the existence of such a condition
noting that the work in question was performed on the third day of the derailment and by that time t
The relevant sections of the Coordination Agreement provide as
follows:
"Section 2. This Agreement covers the performance
of all work generally recognized as Maintenance of
Way work within the following limits which shall
Form I Award No. 27783
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89-3-86-3-2
constitute the outermost limits of the greater
Toledo, Ohio terminal, which shall be known as 'the
co-ordinated terminal area':
-MP 114 on the C60 Columbus Sub-Division
-all property of the
TTRR.
* ,t ,t
Section 8. (a) All
TTRR
employees on
TTRR
Maintenance of Way rosters will be placed on the bottom
of the appropriate C6o Hocking Division Maintenance
of Way seniority roster corresponding to the
roster(s) on which they hold seniority on the
TTRR
with a C60 seniority date as of the effective date
.of this Agreement and ranked in the order of their
existing ranking on the
TTRR.
Such employees will
retain their existing
TTRR
seniority except as
further provided in paragraph (d) of this Section
8 . "
On the basis of the record before us, we must sustain the Claim. It
is undisputed that the derailment occurred outside the geographic limits of
the co-ordinated terminal area established by the Coordination Agreement. The
Coordination Agreement was designed to govern the allocation of work between
the Carrier's employees and the
TTRR
employees within the specific geographic
area set forth in Section 2 of the Coordination Agreement. Therefore, unless
there is a specific contract provision permitting the use of the employees
covered by the Coordination Agreement in areas outside of the geographic
limitations of that Agreement so as to supersede rights accruing to employees
under the Schedule Agreement, rights accruing to employees under the Coordination Agreement cannot b
of that specified geographic area negotiated by the parties in the Coordination Agreement.
The Carrier's reliance upon Section 8(a) of the Coordination Agreement does not sufficiently dem
beyond the geographic bounds of that Agreement so as to permit them to work on
the derailment in question ahead of Claimants under the Schedule Agreement.
While Section 8 of the Coordination Agreement placed all
TTRR
employees on
TTRR
Maintenance of Way rosters at the bottom of the appropriate Hocking
Division Maintenance of Way roster with a seniority date of the effective date
of the Coordination Agreement, our reading of that provision does not give the
Carrier the ability to use the Walbridge employees on the derailment ahead of
Claimants. The rights accruing under Section 8 of the Coordination Agreement
are specifically limited by that section and we can find no language permitting widespread use of th
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89-3-86-3-2
of employees under the Schedule Agreement. The logical extent of the Carrier's argument would gi
Coordination Agreement
with
limited seniority rights as specified in Section 8 and their relatively recent
Hocking Division seniority dates (i.e., May 22, 1984) greater seniority privileges than more senior
clearer direction from the parties that such a result was intended, we
cannot
reach the
conclusion
advanced by the Carrier in this case.
With respect to the Carrier's assertion that an emergency existed
permitting it greater latitude in the use of its employees, while we agree
with the proposition advanced by the Carrier that it has such latitude, we
cannot find
that a sufficient showing has been made in this record to find
that doctrine applicable to this matter. First, the work at issue occurred on
the third day of the derailment. Trains were proceeding through on Track No.
1 on the first day. Second, while we have no doubt that a backup continued as
a result of the non-operation of Track No. 2 on the third day as asserted by
the Carrier, this record does not demonstrate the degree of such a backup. As
a result of the continued blockage of track No. 2 were trains backed up a few
minutes to be considered only a minor delay, or many hours to be considered an
emergency? This record does not disclose the answer. All we can determine is
that "some trains were being delayed." The extent of that delay is not evident. Third, the Carrier's
the derailment, it should not be required to go through recall procedure,
not persuasive. The Carrier made no attempts to contact Claimants and i_
not been shown that attempts to recall Claiamnts would have been time consu:4ing to any sufficeint d
the Claimants who lives in the area of the derailment appeared at the site and
offered to work, which offer was turned down, thereby indicating that the situation was not as sever
With respect to the holiday pay portion of the Claim, the Carrier
does not appear to dispute the allegation of entitlement to holiday pay as a
proper part of the remedy. Since we have found that Claimants should have
worked on December 21, 1984, those specifically named Claimants set forth in
paragraph 3 of the Claim shall also be eligible for holiday pay in accord with
the terms of the Schedule Agreement.
A WAR D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J4Y_ver - Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1989.